The High Court has granted permission to a woman to bring a challenge over the Attorney General’s refusal to direct a fresh inquest into the death of her brother who drowned in Dublin’s docklands more than 13 years ago.
John Kelly drowned at Britain Quay during the early hours of October 16th, 2008. His sister Emma Kelly sought that a new inquest be held.
It followed a report in 2018 by retired High Court judge Daniel Herbert into the response of gardaí to emergency calls after Mr Kelly went into the water.
Garda response
The retired judge criticised as “confused, inappropriate and inadequate” the garda response. He recommended “an urgent investigation” into the capacity of gardai to respond correctly and effectively to emergency calls from the public.
Mr Kelly, aged 24, is thought to have gone into the water at 12.15am and could be heard making repeated calls for help.
Residents from nearby apartments, called the gardaí.
Gardai located Mr Kelly in the water about 12.55am and he slipped under the surface at 12.58am, shortly after emergency fire and river rescue services arrived on the scene.
An inquest in 2009 found Mr Kelly died due to misadventure. His family claims that hearing was flawed and, in light of Judge Herbert’s serious findings, a new inquest is required.
In January last year, Emma Kelly sought leave from the High Court to bring judicial review proceedings challenging the AG's refusal to direct a new inquest.
The court directed that the application be made on notice to the AG and Ireland and a hearing followed.
Ms Kelly claimed the first inquest was void due to its failure to comply with the requirements of Article 2 (right to life) of the European Convention on Human Rights (ECHR). A refusal to grant a new inquest breached that right, it was claimed.
She argued there was a constitutional right to an investigation as a corollary of the right to life. She also claimed the garda investigation was flawed.
The respondents opposed the application.
Ms Justice Niamh Hyland ruled Ms Kelly should be given leave to bring proceedings under some of her ECHR arguments.
However, she was not prepared to grant leave on grounds seeking an order that the AG order the holding of a new inquest.
She said this was not a relief a court would be entitled to grant even assuming the facts identified Ms Kelly could be established.
The case will go to full hearing at a future date.
